A Trump Indictment Could Be Near. Here’s What We Don’t Yet Know.
As Jack Smith’s federal grand jury reconvenes in Washington, D.C. after a four week hiatus, and as reports swirl that a decision to move forward with an indictment could come any day, it’s useful to go back to the core of the probable case against ex-president Trump. There are several things we, the public, don’t fully know and are waiting to find out.
Let’s take a look at some of the bigger ones and, using Occam’s razor, tease out the simplest, most likely answers. I should caution that these could be wrong, but they are at present the best conclusion we can draw based on what we know about the evidence to date.
Here we go.
Did Trump pack up classified documents himself?
Lawyers for Trump have implied in their various court filings that it wasn’t Trump but rather his aides, working with the General Services Administration (GSA), who packed up boxes. They purportedly did so in a hurry in the final days of his presidency. The implication of this is clear: that Trump should be treated like President Biden and former Vice President Pence, who also wound up having classified documents in their residences without their knowledge. No “willful” retention would likely mean no charges, as we just saw with Pence.
“The GSA was involved,” Trump claimed in an interview with Sean Hannity on September 21, 2022. “They packed them up.”
But the evidence doesn’t support this version of events. Per reporting by Bloomberg, the boxes were already packed when the movers from the GSA arrived at the White House. The contract with the GSA only involved shipping the boxes to Mar-a-Lago, not packing them up inside the White House.
That means someone inside the White House packed the documents. Whether it was Trump or someone close to Trump remains publicly unknown. Some reports described a chaotic scene, as Trump finally realized that he had lost the 2020 election and would be forced to move, leaving little time to pack up properly. Special Counsel Smith’s office has likely interviewed everyone involved.
And here’s an interesting fact: Emails between the White House and the GSA reveal that the contents of the delivery to Florida were described in painstaking detail, down to how many rolls of bubble wrap and tape were used, and all under a plan signed off on by former Chief of Staff Mark Meadows. Yet they somehow failed to state that top secret and other classified documents were among the items. Some 30 “bankers’ boxes” went down among the four pallets of items, and they apparently included prohibited, classified documents.
One thing we do know: When the National Archives finally forced the return of some 15 boxes of presidential records, which wound up including some documents marked classified, it was ex-president Trump who had personally packed those boxes to ship back to Washington from Mar-a-Lago. Per reporting by the Washington Post, Trump was determined to declare that all material sought by the Archives had been handed over, according to people familiar with the matter.
That of course was untrue.
Did Trump know he wasn’t supposed to retain classified documents?
Whether Trump knew he had to return classified documents to the government after being subpoenaed to do so remains a key question relating to Trump’s underlying intent. It seems almost silly, but Trump could argue that he didn’t understand what the big deal was, that he understood them to be his documents and not the government’s, and that he had declassified them in any event. Trump has tested out various versions of this defense in his public statements, and his base appears to accept these as valid.
If he charges Trump with violation of the Espionage Act, Special Counsel Smith will have to prove, beyond a reasonable doubt, that despite his statements to the contrary, Trump knew he couldn’t hold onto top secret and other classified documents, whose return had been demanded by the government. That’s a critical element of the possible Espionage Act charge in this case: willful retention. Can Smith pull that off?
The evidence now points to yes. As I discussed in an earlier piece, there is a tape in Trump’s own words, recorded during a meeting in September of 2021, that helps make this case strongly, though it’s important to state that no one in the press has actually heard it yet, so we can’t say for sure how far it gets us.
That tape purportedly reveals that Trump knew he had in his possession a classified war plan for Iran—something of great intelligence value, especially to our enemies. It also purportedly has Trump admitting that he could not show others the document because it remained classified and he didn’t have the power to declassify it because he was no longer president.
If that bears out, it would be strong evidence of Trump’s knowledge, a very rare get with someone like Trump, who normally leaves no trail.
But it’s more than just that one tape.
Notes from Trump’s own lawyer, Evan Corcoran, who conducted the final “diligent search” for documents responsive to the federal grand jury’s subpoena for all remaining classified documents, reportedly indicate that Corcoran had made it clear to his client that he could not retain classified documents. Jack Smith obtained those notes after winning a key motion to pierce the attorney-client and work product privilege on grounds that a crime, in this case obstruction, likely had occurred and that Trump was furthering that crime via his attorney.
It’s nearly a certainty that when Corcoran testified before the grand jury, he provided relevant context and confirmed the account he had written in his own notes. Hearing a defendant’s lawyer’s sworn testimony that he told his client what the law required of him is some powerful stuff, and Trump will have little wiggle room to claim he just didn’t know. Add the tape from September 2021, and the case for Trump’s willful retention and knowledge grows very strong.
Where are the missing documents?
There’s a mystery about that September 2021 meeting that hasn’t been solved yet. As discussed above, Trump stated that he was in possession of a secret plan to invade Iran, purportedly drawn up by the chairman of the Joint Chiefs of Staff, Gen. Mark Milley. But when Trump returned 15 boxes from Mar-a-Lago in early 2022, that document was not among them.
Nor was it among the documents seized from Mar-a-Lago in August 2022 pursuant to a search warrant. And Trump’s lawyers have admitted that they have not been able to find it. So where is it?
You may recall, the FBI also reported recovering several empty file folders with top secret and other classified markings. What happened to the documents that were inside of them?
At this point, we don’t know much about where else the FBI has gone looking for the documents or whether any others have been recovered. Sometimes searches are conducted without fanfare or publicity, and they remain under seal. Indeed, the search of Mar-a-Lago might not have produced much by way of publicity had Trump himself not gone public about what was happening.
My guess is that Trump still has some documents at another location, such as Bedminster, and he may not even be telling his own attorneys about them. But there isn’t strong enough evidence to get a warrant based on probable cause that the documents are still there and need to be retrieved immediately. It’s unclear what will become of those documents.
A side note here: one of the trickiest things about holding a trial over the illegal retention of top secret or other classified documents is that the jury itself cannot see the documents because they lack the requisite security clearances. Documents have to be spoken of in the abstract, or the jury has to accept the word of people who have such clearances. That process can gum things up considerably in a case, as we saw when Trump delayed the whole case by months by pursuing the appointment of a special master to review the seized documents.
Did Trump order certain documents moved so that his lawyer wouldn’t know about them?
The second likely prong of any set of charges will revolve around obstruction, specifically whether Trump undertook steps to prevent the government from recovering missing documents.
Based on what has been publicly reported, there is a version of events in my own mind that goes something like this:
In early 2022, Trump packs up boxes personally in response to a request from the National Archives and returns some 15 boxes that he had taken with him to Mar-a-Lago. But among them are some documents marked classified, so the Archivists sound the alarm and alert the Justice Department, which empanels a grand jury to further look into the matter.
The grand jury issues a subpoena for all remaining documents, including any classified ones. Corcoran, whose job it is to handle the subpoena, explains to Trump that he has to comply with it. He writes this all down in his notes.
Unbeknownst to Corcoran, Trump has boxes pulled out of the Mar-a-Lago storage area by his valet, Walt Nauta, and likely sent to his office. And this is the missing piece: Trump likely goes through these and removes the documents he wants to keep. He probably has other documents he keeps in his office and residence as well. This is the part of the series that is most unclear based on what is publicly known.
Corcaran is told, either by Trump or his aides or both, to search the storage area for responsive documents, but he apparently isn’t told that Trump still has documents in his office and residence.
Corcoran finds some more classified documents in the storage room. He puts them in a Redweld folder, then drafts an affidavit for the FBI saying they have conducted a diligent search and there are no more responsive documents.
On June 2, the day before the arrival of Jay Bratt, who is the head of FBI Counterintelligence, Trump has Nauta move boxes back into the storage area where Corcoran had been looking.
On June 3, Corcoran hands the Redweld folder to the FBI and says that’s it, no other classified documents exist. He gets another Trump attorney, Christina Bobb, to sign the affidavit. She does so reluctantly after adding that it is based on her best information.
On June 4, Nauta packs up an SUV with boxes as Trump prepares to leave for Bedminster.
If this timeline of events, which is strongly suggested by the public reporting on the case, winds up being what really happened, it looks very bad for Trump. It would show that Trump intentionally misled Corcoran and made him an unwitting accomplice in obstruction. Indeed, a federal judge has already agreed, based on the timeline and evidence she was presented, that it is likely that Trump committed obstruction and used Corcoran to further it. It’s only a bit of a step further to bring that same case to the grand jury.
It turns out, per reporting by the New York Times, Corcoran probably understood that this very thing might happen. So he did what any lawyer in that position might: He covered his own ass.
During a long drive to a family event, Corcoran turned on his voice recorder and narrated exactly what Trump had asked him to do, where he had looked in preparation to meet with the FBI and deliver the Redweld folder, and what he had said to Trump at the start of and during the process. That audio file is now also in the hands of Jack Smith.
What was Trump’s motive in keeping the documents?
The public likes to understand the why of a matter, even if it’s not necessary to prove the underlying charge. Here, in a court of law, it doesn’t really matter why Trump decided to hold on to top secret documents, only that he did so willfully.
But for the court of public opinion, motive will still matter a great deal. Was Trump just a stubborn packrat, claiming every document as his and refusing to budge? Or at the other end, was he selling the secrets to the Saudis and others, given that we know the secrets included things like military plans against Iran?
We know that Smith has looked at evidence of the latter, but so far, much as we might suspect Trump is selling our secrets to our enemies, there has been no report of any sale or transference of classified information. Evidence of such a thing, even if it existed, would likely prove difficult to find.
Trump’s retention of Gen. Milley’s alleged Iran war plan provides a bit of a window into at least one of Trump’s possible motivations. As I wrote about earlier, Trump was furious over reporting that Milley had been actively trying to keep Trump from doing something crazy at the end of his time in the White House, including invading Iran. Trump likes to have “dirt” on people, and in his somewhat small and twisted mind, it’s easy to see how an alleged plan by Milley to invade Iran would be useful to Trump to push back on that press narrative. “Milley was the one who wanted to invade Iran, not me!” Or some such thing.
For a president who was deeply mistrustful of what he believes was a deep state conspiracy against him, classified documents about or written by his many suspected enemies would be personally valuable, especially if Trump’s plan is to return to the White House and exact retribution on anyone who has wronged him. To me, that seems the simplest explanation for why he would resist the government’s efforts to recover the documents, even to the point of risking a charge of obstruction.
For Trump, giving up these documents would be like giving up his trump cards.
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It’s your final chance! Today’s the last day of my special Indictment Offer: 20% of the regular annual subscription to The Status Kuo. If you’ve been meaning to show your support for my work (and keep me writing here instead of working for a corporate law firm,), this is a great chance to do so! And bonus: You’ll add to our collective wish for an indictment to land soon. Ah, the power of positive thinking. Thanks to all who have supported!
As someone who held a TS clearance, this narrative makes me physically ill. It is beyond comprehension that a deranged egomaniacal clown had access to the Nation's most sensitive information. The risk to our security, that of our allies, and that of our sources is incalculable.
About this: “For a president who was deeply mistrustful of what he believes was a deep state conspiracy against him” — I do not believe that Trump believes in a deep state conspiracy. That’s an elaborate act. His entire political persona is an elaborate fabrication. I do believe he wants power, wealth, and, above all attention and adoration. And the only way he knows how to get it is to deliver the kind of performance he has delivered since 2015—Well, really, his whole adult life, but in terms of politics, since 2015.